The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELTON L. MATTHEWS, Jr., No. 13-16733
Plaintiff-Appellant, D.C. No.
2:12-cv-01004-PMP-CWH
v.
RYAN HESSLER; WILLIAM MEMORANDUM*
AMBRIDGE; JAMES G. COX; CARLOS
MORAN, Jr.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted March 17, 2017**
San Francisco, California
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.
Felton L. Matthews, Jr., a Nevada state prisoner, appeals from the district
court’s dismissal of his 42 U.S.C. § 1983 action. We review de novo the district
court’s summary judgment. Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court correctly held that William Ambridge and James G. Cox
are entitled to qualified immunity as to Matthews’ First Amendment claim. When
a defendant asserts a qualified immunity defense, we inquire “whether the
plaintiff’s allegations, if true, establish a constitutional violation.” Wilkins v. City
of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). We also ask “whether the actions
alleged violate a clearly established constitutional right, where ‘clearly established’
means that ‘it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 202
(2001)).
A reasonable officer could have believed that confiscating Matthews’
sexually explicit hand-drawn comic book was consistent with the First
Amendment. We have upheld regulations prohibiting inmates from possessing
even materials depicting “frontal nudity” on the grounds that such regulations were
reasonably related to legitimate penological interests, including maintaining jail
security, rehabilitating inmates, and reducing sexual harassment of female
detention officers. See Mauro v. Arpaio, 188 F.3d 1054, 1058–59 (9th Cir. 1999).
Matthews’ comic book, which depicted pedophilic sexual activity, was far
more graphic. Given its contents, as well as Matthews’ status as a convicted child
sex offender, Ambridge and Cox could have reasonably believed that the comic
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book was permissibly forbidden under the Nevada Department of Corrections’
administrative regulations, which prohibited the possession of publications or
magazines containing sexually explicit content “which by its nature poses a threat
to the security, good order, rehabilitation or discipline of the institution.”
To the extent that Matthews asserts an Equal Protection claim, it fails for the
same reasons. In addition, any Equal Protection claim also fails on a factual basis.
Matthews asserts that he is treated differently from other inmates who are not child
sex offenders because other inmates are allowed “Playboy and Penthouse
magazines” that do not depict “connecting genitalia and excretions.” However,
Matthews’ “comic book” does contain this forbidden content.
The district court correctly held that Matthews failed to exhaust his Eighth
Amendment and retaliation claims. Matthews does not dispute that he did not
formally grieve his Eighth Amendment claim and that he had not received a
response to his second level grievance as to the retaliation claim before he filed
suit.
AFFIRMED.
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